UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SUSAN CVANCARA, Plaintiff - Appellant,

v. STEVE REAMS, Defendant - Appellee. No. 16-1093 (D.C. No. 1:14-CV -03106-RM-CBS) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , GORSUCH , and MATHESON , Circuit Judges.

________________ _________________ Susan Cvancara appeals from the district court’s entry of summary judgment on her claim that she was fired from he r job with the Weld County, Colorado, Sheriff’s Office (WCSO) in retaliati on for exercising her First Amendment free-speech rights. We have jurisd iction under 28 U.S.C. § 1291 and affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 23, 2017
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Ms. Cvancara worked as a victim’s advo cate for the WCSO’s Victim Services Unit (VSU) from 2005 until December 2013. In August 2013, Deborah Calvin was hired to be Director of the VSU, a pos ition Ms. Cvancara had held until she was demoted in 2011 following a series of wa rnings and disciplin e for her behavior, which included spreading rumors and ma king disparaging comments about other employees. At the time she became the full-time VS U Director, Ms. Calvin was a realtor, and she continued to work as a realtor wh ile employed as the Director. Ms. Cvancara soon became concerned that Ms . Calvin was attending to he r real estate job while on VSU time. Ms. Cvancara expressed that c oncern to Investigator David Porter and also complained to him th at Ms. Calvin was changing policies in a manner that disproportionately shifted work away from her and onto Ms. Cvancara, who was the only other paid victim advocate, and that Ms. Calvin was hired to be the VSU Director due to political connections. I nvestigator Porter to ld Ms. Cvancara to address the issues by following her chain of command. Ms. Cvancara also relayed some concerns about Ms. Ca lvin (precisely which ones are unclear from the record) to WCSO Commander Ed Haffner who, like I nvestigator Porter, was not in her chain of command. Investigator Porter relayed Ms. Cvancar a’s statements to another commander, who informed Sergeant Peter Wagoner. Sergeant Wagoner and Ms . Calvin then met with Ms. Cvancara, who claimed she had di scussed her concerns about Ms. Calvin’s3 policy changes only with Commander Ha ffner, did not know Ms. Calvin was politically connected, and had not discusse d with anyone whether Ms. Calvin was working her real estate job while on coun ty time. The next day, Ms. Cvancara submitted a written statemen t to Sergeant Wagoner in which she made the same claims. When Sergeant Wagoner met with Ms. Cvancara a few days later, she initially repeated th at she had spoken only to Commander Haffner about the policy changes, but after Sergeant Wagoner said he knew that was not true and that he had gotten information from Investigator Port er, Ms. Cvancara admi tted the truth. Sergeant Wagoner prepared a written report finding that Ms. Cvancara had violated orders by not adhering to her ch ain of command when expressing concerns about the policy changes and had violated various WCSO policies and Weld County Code provisions concerning truthful ness, acceptance of responsibility, and insubordination. His report was passed up the chain of command to the Sheriff who, in light of Ms. Cvancara’s disciplin ary history, fired Ms. Cvancara for insubordination and lack of candor. 1 In this lawsuit, Ms. Cvan cara asserted a claim under 42 U.S.C. § 1983 that the Sheriff violated her First Am endment right to freedom of speech because he fired her for speaking out on a matter of public c oncern. The Sheriff moved for summary judgment, which the district court grante d on the ground that Ms. Cvancara’s speech

1 At the time, the Weld County Sheriff was John Cooke. Because Ms. Cvancara sued Sheriff Cooke in his official capacity onl y, he was replaced as the defendant in this action by the present Sheri ff, Steve Reams. We will simply refer to the defendant as the Sheriff.4 was not protected because it did involve a matte r of public concern. In reaching that decision, the district court considered a nd granted in part the Sheriff’s motion to strike portions of Ms. Cvancara’ s affidavit. However, the court also determined that its ruling on the motion to strike was “large ly irrelevant” because, in responding to the Sheriff’s statement of undisputed mate rial facts, Ms. Cvan cara had failed to follow the court’s standards of practice concerning cita tion to supporting evidence and therefore had not properly presented any of the facts sh e had attested to in her affidavit. 3 Aplt. App. at 597. Ms. Cvancara appeals, arguing the distri ct court (1) misapplied the summary judgment standard, (2) erroneously concl uded that her speech did not involve a matter of public concern, and (3) erred in striking or otherwise refusing to consider statements in her affidavit. II. STANDARD OF REVIEW “We review the district court’s gran t of summary judgment de novo, applying the same standards that the distri ct court should have applied.” Fields v. City of Tulsa , 753 F.3d 1000, 1008 (10th Cir. 2014) (i nternal quotation marks omitted). A “court shall grant summary judgment if th e movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) . “[W]e examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the nonmoving party.” Fields , 753 F.3d at 1009 (internal quotation marks omitted).5 III. DISCUSSION A. Application of summary judgment standard In his motion for summary judgment, the Sheriff argued he was entitled to judgment as a matter of law because the undisputed eviden ce revealed that Ms. Cvancara could not establish the firs t and third prongs of the five-pronged

“ Garcetti/Pickering ” test applicable to retaliati on claims brought under the First Amendment’s free-speech clause. 2 Those prongs are: (1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficien t to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether th e defendant would have reached the same employment decision in the abse nce of the protected conduct. Dixon v. Kirkpatrick , 553 F.3d 1294, 1302 (10th Cir. 2009). The district court rejected the Sheriff’s argum ents on the first and third prongs and instead granted summary judgment based on the second pr ong—that Ms. Cvancara’s speech was not “on a matter of public concern.” Ms. Cv ancara claims that in considering and deciding her case based on a prong the Sher iff did not raise, the district court improperly relieved him of his initial burden to demons trate an absence of any genuine issue of material fact and imperm issibly shifted the burden to Ms. Cvancara to prove there were no genuinely disputed issues of material fact as to the public-concern prong.

2 The test draws its name from Garcetti v. Ceballos , 547 U.S. 410 (2006), and Pickering v. Board of Education , 391 U.S. 563 (1968).6 We are not persuaded. Generally, a party moving for summary judgment is charged with telling the district court the basis fo r its motion. Celotex Corp. v.
Catrett , 477 U.S. 317, 323 (1986). But in Johnson v. Weld County , 594 F.3d 1202, 1214 (10th Cir. 2010), we approved a gran t of summary judgment on a claim not raised in a defendant’s opening summa ry-judgment brief where the plaintiff “marshaled and outlined the evidence suppor ting her claim” in her response brief, there was no indication the plaintiff wa s prevented “from offering additional evidence or argument to defend her claim, ” and the plaintiff did not identify on appeal any “way in which she was prej udiced by the district court’s chosen procedural course.” Similarly here, the distri ct court took up the pub lic-concern issue only after Ms. Cvancara argued in her summary-judgment response brief that her speech was on a matter of public concern and pointed to evidence she cl aimed “established that her speech [was] of public concern.” 2 Aplt. App. at 188. In his summary-judgment reply brief, the Sheriff addressed the is sue, arguing that there were no genuinely disputed issues of material fact in the evidence properly before the court, and that such evidence was insuffici ent for Ms. Cvancara to su rvive summary judgment. Accordingly, the public-concern prong, which was a legal one for the court to decide,
see Dixon , 553 F.3d at 1302, was sufficiently deve loped for the court’s consideration, and Ms. Cvancara has not compla ined that the manner in wh ich the issue came to the court’s attention prevented he r from presenting evidence.7 Ms. Cvancara characterizes the court’s conc lusion that she “failed to establish” the public-concern prong of the Garcetti/Pickering test, 3 Aplt. App. at 609, as an improper requirement that she prove that pron g. We disagree. The court’s use of the phrase “failed to establish” may have been imprecise as a matter of summary-judgment standards, but the cour t determined the evid ence before it was insufficient to support the public-concern pron g. This was permissible because the public-concern prong is an element of Ms. Cvancara’s claim and one on which she was to bear the ultimate burde n of persuasion at trial. See Trant v. Oklahoma , 754 F.3d 1158, 1166-67 (10th Cir. 2014) (noti ng that a plaintiff bears the burden of proof on the first four Garcetti/Pickering prongs); Montes v. Vail Clinic, Inc. , 497 F.3d 1160, 1163 (10th Ci r. 2007) (“Summary judgmen t follows when a moving party points to the absence of factual support on an element essential to the non-movant’s case, and on which the non- movant bears the burden of proof at trial.”). In sum we see no unfair prejudice flowing from the district court’s decision to consider the issue even though the Sheriff did not raise it fi rst. Whether the district court erred in determining th ere were no genuinely disputed issues of material fact and in concluding that Ms. Cvancara’s spee ch was not on a matter of public concern are separate questions we proceed to address.8 B. Ruling that speech was no t on a matter of public concern The district court determined that although “at first gl ance” Ms. Cvancara’s speech to Investigator Porter 3 appeared to be on a matte r of public concern because she spoke out about potential impropriety, a closer look at Ms. Cv ancara’s statements about Ms. Calvin’s alleged work as a real estate agent wh ile on county time led to the opposite conclusion. 3 Aplt. App. at 607. We agree. “Speech is on a matter of public concern if it involves a matter of interest to the community.” Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1367 (10th Cir. 2015). “Whether an employee’s speech addr esses a matter of public concern must be determined by the content, fo rm, and context of a given st atement, as revealed by the whole record.” Connick v. Myers , 461 U.S. 138, 147–48 (1983). “We consider the motive of the speaker and whet her the speech is calculated to disclose misconduct or

3 The district court confined its anal ysis to what Ms. Cvancara said to Investigator Porter because she did not rely on what she may have told Commander Haffner concerning Ms. Calvin’s alleged real estate activitie s. As noted earlier, what she may have told Commander Haffner is unclear from the record. Indeed, on appeal, Ms. Cvancara points only to a bare , undisputed fact th at she spoke with Commander Haffner, and a lin e of questioning at her de position where the Sheriff’s attorney inquired why she took her concern about Ms. Calvin’s al leged real estate activity to Investigator Port er and Commander Haffner desp ite the fact that she had no personal knowledge informing that concern and had previously been warned about spreading rumors. The undisputed fact says nothing about the content of that conversation, and the Sheri ff’s attorney’s line of ques tioning cannot be taken as evidence that Ms. Cvancara spoke to Commander Haffner about Ms. Calvin’s real estate activities. The only ot her references to that c onversation indicate that it concerned only the policy changes Ms. Calv in had instituted, and Ms. Cvancara has never argued that her speech on those changes is protected. But even if she spoke with Commander Haffner about her concerns that Ms. Calvin was working as a realtor on county time, our analysis of the public-concern prong would be the same.9 merely deals with personal dis putes and grievances unrelated to the public’s interest.”
Nixon , 784 F.3d at 1367 (internal quotation mark s omitted). “In particular, speech that exposes official impropr iety generally involves matter s of public concern, while speech that simply ai rs grievances of a purely personal nature typically does not.” Id. at 1367–68 (internal quota tion marks omitted). Further, “[s]peech involves a public con cern when the speaker intends to bring to light actual or potential wrongdoing or breach of public tr ust by a public official or to disclose any evidence of corruption, im propriety, or other malfeasance within a governmental entity.” Eisenhour v. Weber Cty. , 744 F.3d 1220, 1228 (10th Cir. 2014) (brackets and internal quotation ma rks omitted). However, “[i]t is not sufficient that the topic of th e speech be of general interest to the public; in addition, what is actually said must meet the public concern threshold.” Nixon , 784 F.3d at 1368 (emphasis added) (interna l quotation marks omitted). Here, the district court noted there wa s limited evidence properly before the court of what Ms. Cvancara actually said to Investigat or Porter because the only evidence Ms. Cvancara presented consiste d of some general facts about her conversation with Investigator Porter, and the court declin ed to consider those facts because of Ms. Cvancara’s fa ilure to follow the court’s practice standard regarding accurate citation. The court instead looked at what Investigator Porter described in a written statement he subm itted to his commander, which was simply that Ms. Cvancara “believed [Ms. Ca lvin was] working a real es tate job while working on10 the WCSO clock,” 1 Aplt. App. at 140. The court noted that this provided no explanation for Ms. Cvancara’s belief and no evidence of her motive. But the court then considered , apparently in the alterna tive, facts it had said it would not consider because of deficiencies in Ms. Cv ancara’s affidavit and her failure to follow the court’s practice sta ndards concerning citation to the record. Among those were that (1) soon after being hired, Ms. Calvin sent an email to other victim advocates explaining she was also a realtor and providing a personal email address; and (2) Ms. Cvancara said she ha d found Ms. Calvin’s real estate business card in one of the county vehicles used by victim advocates and a camera containing photos of a house that she t hought were of the type a r ealtor might take in another county vehicle, also us ed by victim advocates. 4 The court concluded that even if Ms. Cvancara had described these things to I nvestigator Porter, th ey would not be of interest or concern to the public. Although the email was not presented to the court, the court gleaned from the Sheriff’s depos ition testimony that Ms. Calvin sent the email to introduce herself to co-workers, and Ms. Cvan cara admitted she did not know who placed the business ca rd in the car or who owne d the camera, and that she had no direct evidence that Ms. Calvin wa s working as a realto r on county time.

4 The district court also addressed ot her evidence Ms. Cvan cara pointed to in support of her contention that Ms. Calvin was impermissibly attending to her realtor job while on county time, including (1) the f act that there was no investigation of Ms. Calvin and (2) the testim ony of a volunteer victim a dvocate that Ms. Calvin had asked her to cover her responsibilities so sh e could attend a real es tate meeting. The court discounted this eviden ce because it was undisputed that Ms. Cvancara was not aware of these facts at the time she spoke with Investigator Porter. We agree and need not discuss t hose facts further.11 See Lee v. Nicholl , 197 F.3d 1291, 1295 (10th Cir. 1999) (explaining that “speech must sufficiently info rm the issue as to be helpful to the public in evaluating the conduct of the government” (internal quota tion marks omitted)). The court further reasoned that the form and context of Ms. Calvin’s conversation with Investigator Porter—an informal conversation between co-workers—supported the conclusion that Ms. Cvancara was not motivated by broader public purposes but was instead airing grievances. 5 We agree with the district court’s c onclusion that Ms. Cv ancara’s speech was not on a matter of public concern. Based on the Sheriff’s descrip tion of Ms. Calvin’s introductory email, which he looked at wh ile being deposed, no reasonable inference can be drawn that Ms. Calvin used her c ounty email account to solicit real estate business. Hence, even crediting Ms. Cvan cara’s testimony that she had heard about the email at the time she spoke with Investigator Po rter, her statements to Investigator Porter amounted to sp eculation based on a few weak bits of circumstantial evidence (the business card and camera) that Ms. Calvin was attending to her real estate job on county time. And further crediting Ms. Cvancara’s contention that her motive was to expose potential misconduct, malfeasance, or

5 In support of its reasoning on form a nd context, the district court cited Thayer v. City of Holton , 515 F. Supp. 2d 1198 (D. Kan. 2007), for its statement that a “relatively private and in formal setting and limited audience . . . are factors suggesting that the comments were not matters of public concern,” id. at 1207. However, we had earlier rejected the notion “that failure to spea k publicly indicates speech was not made on a matt er of public concerns.” Lee , 197 F.3d at 1295. In light of our ensuing analysis in this ca se, however, we need not determine whether the district court erred in its form-and-context analysis.12 corruption, motive alone is in sufficient to turn speech in to a matter of public concern where the content of the sp eech is speculation based on weak evidence. This is because “[t]he interest at stake is as much the pub lic’s interest in receiving informed opinion as it is the employee’s ow n right to disseminate it.” City of San Diego v.
Roe , 543 U.S. 77, 82 (2004) (per curiam ) (emphasis added). Ms. Cvancara’s suspicions about Ms. Calvin were not suffici ently informed to be of public concern. C. Treatment of Ms. Cvancara’s evidence Ms. Cvancara takes issue with the dist rict court’s decision to strike three paragraphs from her affidavit and to othe rwise not consider ev idence she presented without adhering to the court’s practice st andard concerning accurate citation. However, as we have seen, th e district court ultimately considered that evidence and concluded (correctly, in our view) that the evidence did not alter its conclusion that
Ms. Cvancara’s statements to Investigator Porter did not touch on a matter of public concern. Accordingly, we see no need to address the issue. IV. CONCLUSION The judgment of the dist rict court is affirmed.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge